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MP: Let me address ludicrous misrepresentations
2 December 2009
Hull Daily Mail
Letters
Please allow me to address the ludicrous misrepresentation of the facts by the Conservative candidate for East Hull concerning Gary McKinnon (Letters, December 2).

Mr McKinnon is accused of serious criminal offences. He is alleged to have repeatedly hacked into US computer networks over a period of 13 months, including 97 US military computers from which he deleted vital operating systems and then copied encrypted information on to his own computer, shutting down the entire US Army's military district of Washington's computer network for 24 hours shortly after 3,000 Americans had been killed in the attack on the Twin Towers.

He has admitted to leaving the following message on one of the US Defence Departments computers: "US foreign policy is akin to government-sponsored terrorism these days. It was not a mistake that there was a huge security stand-down on September 11 last year! I am Solo. I will continue to disrupt at the highest levels."

The prosecuting authorities have decided he should answer for his actions.
Mr McKinnon has challenged his extradition before the district judge, the High Court, the House of Lords and the European Court of Human Rights all of whom have ruled that the extradition should go ahead.

It was at that stage in August last year that Asperger's was first diagnosed. He then made representation to my predecessor as Home Secretary that in view of this diagnosis his extradition would breach Article 3 of the European Convention On Human Rights. After the Home Secretary decided his condition would not constitute such a breach, the case went before the High Court, which pointed out that people with much more serious illnesses had been sent from the UK and rejected his appeal, stating his case "does not approach Article 3 severity".

I concluded recently the latest medical reports did not change that view. Extradition does not denote guilt or innocence and Mr McKinnon's legal representatives have been given time to seek to appeal my decision, once again in the courts.

The High Court was impressed by the assurances of the US authorities about the care Mr McKinnon will receive, but so far as I am aware nobody, apart from your correspondent, has argued that Asperger's (or any other illness for that matter) should insulate people charged with serious criminal offences from prosecution under the law.
Alan Johnson MP.


Dear Sirs

Please allow me to address the Home Secretary's ludicrous misrepresentation of the facts concerning Gary McKinnon (Letters, December 2nd).

Mr McKinnon was accused of the Summary Offence of Computer Misuse in 2002, which he admits, but which is not a federal offence in the US, and without $5,000 of damage on each machine was not, and is not a warrant for extradition. For those who do not know, a Summary Offence in the UK may not be prosecuted after 6 months have expired from the date of the offence, and where admitted, and a first offence, may be disposed of by means of a Caution. That is the nature and gravity of the crime to which Mr McKinnon has admitted.

Mr McKinnon was indicted in the US in 2002 and a US arrest warrant was then issued, but the US did not apply to the UK to extradite Mr McKinnon until late 2004, when the new extradition arrangements with the US were conveniently in force, and no evidence of alleged damage was now required in order to extradite. One would have thought there was a time-limit on making such a delayed accusation, some several years after the event.

Please note that Mr McKinnon has always consistently denied the allegations of damage to the machines and systems he accessed. Note also that no evidence has been provided by the prosecution for any damage caused by Mr McKinnon, and that the information he accessed was not so secret or sensitive as for there to be any passwords or firewalls in place at the time to protect it.

Mr McKinnon did not shut down any computers. The US Military and Government decided to shut down their own machines, when the flaws in their security were highlighted to them by Mr McKinnon. This was confirmed in public by a report from computer expert Professor Peter Sommer at the last court hearing. Peter Sommer does a great deal of work for the police in this area and he stated that the financial damage claimed by the US was merely for security/firewalls that the US should have had installed in the first place.

As the Home Secretary says, the prosecuting authorities did indeed decide that Mr McKinnon should answer for his actions. Mr McKinnon’s solicitor has stated that the High Tech Crime Unit and CPS lawyer, and head of Gary’s case at the time, Mr Russell Tyner, was keen to prosecute Mr McKinnon in the UK for Computer Misuse, but informed her that he had been advised “from the very top” to stand aside and allow America to deal with Mr McKinnon, as they wanted to extradite him. Make of that what you will.

The Lords recently ruled that secret evidence could not be used to detain anyone. Surely this should also apply to extradition which is a cruel and unusual punishment for a non violent crime.

As to the prosecution of the stronger allegation of computer damage, a recent CPS disclosure to the court marked the US ‘evidence’ as ‘hearsay’ and ‘no evidence’. The Judge, Lord Justice Stanley Burnton, said, and I quote: “Do you realise how embarrassing it would be for the CPS if Gary McKinnon were tried for this in the UK?” and the prosecution answered “Yes”.

The Home Secretary keeps referring to successive court judgements that have found in favour of the lawfulness of this extradition. In view of the fact that these judgements do not appear to reflect the facts upon which they purport to be based, it might behove him to be more circumspect about this, because of what it implies about the quality of the legal process throughout this matter. In my own correspondence with the Home Office regarding this case, the Home Secretary appears unable to offer any logical argument for this extradition other than referring me to this series of seemingly irrational court judgements.

Mr Johnson makes much of his assertion that the notes left by Mr McKinnon on the US computer systems were left in the immediate aftermath of the dreadful events of 9/11, but in fact these notes were sent many months thereafter. It is true that Mr McKinnon apparently believed in the conspiracy theory that 9/11 was an inside job, hence his note "that he believed it was no accident there was a stand down after 9/11" but the messages he left were no more than a cyber peace protest, as Mr Johnson is well aware.

As regards the seriousness of Mr McKinnon’s alleged crimes, this must surely be assessed in the context that he is, and was at the time of allegedly committing them, a sufferer of Asperger’s Syndrome, which is a form of autism. That the US may have initially misconstrued Mr McKinnon’s actions in the light of 9/11 does not alter the facts regarding the nature of this crime; owing to his condition, Mr McKinnon could not have appreciated how his actions were likely to be misinterpreted. It is clear to anyone with the slightest understanding of Asperger’s Syndrome (which was not diagnosed in childhood, owing to its lack of recognition at that time) that Mr McKinnon’s actions were symptomatic not of terrorist or malicious intent, but of his condition. Thus, Mr Johnson’s claim regarding the seriousness of Mr McKinnon's alleged crime is somewhat undermined, and the fact that he persists in this claim after full consideration of the medical evidence is rather concerning.

I do not believe anyone is arguing that Asperger’s Syndrome should confer blanket immunity from prosecution under the law, as Mr Johnson suggests. Mr McKinnon's family and lawyers have argued only for Mr McKinnon to be tried in the U.K. They have never said he should be immune from prosecution as Alan Johnson is well aware.

What is argued is that in view of the atypically disastrous effect that extradition would have on someone with Asperger’s, the balance of proportionality between the gravity of the crime, and the effect of the prosecution/punishment on the defendant should be weighed accordingly. Mr Johnson has yet to address this point, preferring, it seems, to address a straw man that no-one has proposed. The violation of Article 3 of Mr McKinnon’s Human Rights that this extradition would, in view of his Asperger’s, necessarily entail, is such as to be grossly disproportionate to the gravity of the crime. What is relevant to any consideration of the breach of Mr McKinnon’s Human Rights is not the seriousness of his illness per se, as Mr Johnson appears to believe the courts were right to argue, but the relevance of it in regards to its impact upon the suffering that this extradition will cause.

Each case should surely be taken on its own merits; the merits of this case not only fail to warrant this extradition, but also constitute powerful arguments against it. For some reason, and against all evidence and advice, the Home Secretary is keen to argue to the contrary.

I note that Mr Johnson’s letter to your newspaper was published on 2nd December, shortly after his decision on 27th November not to refuse the proposed extradition. One could argue that this indicates a degree of bias in the Home Secretary’s decision-making, and calls into question his suitedness to be making decisions about this matter.

Mr Johnson’s seeming disregard for the facts in this matter, and contempt for expert advice (including the recommendations of the Home Affairs Select Committee), as well as his shocking disregard for the ancient and modern British values of decency, compassion and fair play, are a very serious cause for public concern. It is my contention that this Home Secretary is no longer fit for public office while he continues to permit this wrongful, cruel and unjust extradition to go ahead, and to seek to mislead the public and the House of Commons as to its legitimacy. I for one call for his immediate and permanent resignation from politics.

Yours sincerely


Ms *****